CAAF Rejects Fourth Amendment Issue in Canine Case

By
Joseph L. Jordan, Attorney at Law
|July 08, 2016

The United States Court of Appeals for the Armed Forces (CAAF) has made
a unanimous decision to uphold the conviction of a Navy lieutenant charged
with possession of marijuana and drug paraphernalia. In
United States v. Harrell, the defendant had argued that her Fourth Amendment rights against illegal
search and seizure had been violated during a traffic stop by civilian
police—especially when a canine unit was called to the scene.

United States v. Harrell

As CAAFlog reports, First Lieutenant Harrell was pulled over on August
4, 2010 by civilian police just after midnight. After collecting Harrell's
information, the officer went back to his vehicle and called for a canine
unit. He suspected that Harrell was under the influence of drugs or alcohol.

In the interim, Harrell was allowed to exit the vehicle to have a cigarette.
She did so, leaving the driver's side window open. The canine unit
arrived and-- after the dog leaped up and stuck his head through the open
vehicle window—led officers to marijuana and marijuana pipes inside
the vehicle. Harrell would later surrender marijuana she had on her person,
as well. At the time of her traffic stop and arrest, she was the subject
of a pending court-martial for wrongful use of marijuana.

Harrell would enter a conditional guilty plea at trial-- conditional in
that yes, she could not deny the presence of a controlled substance on
her person and in her vehicle, but that she was moving to suppress that
evidence against her. Harrell and her legal team asserted that a) her
traffic stop was improperly prolonged so that a canine unit could arrive
and b) that the search of her car by the dog was illegal. Both the initial
judge and the Air Force Court of Criminal Appeals, however, rejected those
claims and upheld Harrell's conviction.

The CAAF Decision

The CAAF panel was unanimous in its decision to uphold Harrell's conviction.
On the first issue, the prolonged police stop, the panel found that the
officer on the scene was actually acting appropriately to prolong it,
due to his suspicion that Harrell was driving under the influence. "The
officer believed Harrell was under the influence of alcohol or drugs.
Officer Soltis also believed Harrell might have been engaged in drug trafficking
because she had driven a rental car a long distance in order to reach
an area locally known for drug activity, but an area that would likely
be unknown to most people coming from St. Louis," the court writes.

The canine issue is more nuanced. Initially, it was asserted that the dog
never occupied the interior space of the car. However, dashboard footage
does show that the dog leaped up and stuck its head through the open driver's
side window. Was this a constitutional violation? The court writes that
no-- it wasn't. This is because a) Harrell herself had control of
that window when she exited the vehicle to have a cigarette and b) even
if the dog's leap up to the window is a violation, it was not under
the direction of any officer and can be described as "instinctual."

"In this case, when Stryker, the drug dog, 'went high' and
placed his forepaws below the driver’s side window, he did so without
prompting, urging, or facilitation by his handler or the other officers,"
the slip opinion notes. "In addition, Harrell had left the window
open when she exited the vehicle to smoke a cigarette. Based on these
established facts, I conclude that when Stryker leapt up on the car, whether
his nose penetrated the interior of the car or not, his actions were instinctual
and therefore did not violate the Fourth Amendment."

Joseph L. Jordan, Attorney at Lawis a 10+ year veteran who has dedicated his firm to the advocacy and protection
of accused members of our armed forces. He travels the world to represent
our clients and has built a reputation for securing consistent and favorable results.

Do not face your criminal allegations without an aggressive and proven
legal counselor by your side.
Contact our firm today.

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